Published: November 18, 2008 04:49 pm      

Penal code reform will take time - it won't happen immediately

One committee recommends easing PFO laws

FRANKFORT — Anyone looking for immediate help for the growing costs of imprisoning more and more people in Kentucky probably ought not to hold their breath.

Two groups have been looking at the problem – a subcommittee of the General Assembly’s Joint Interim Judiciary Committee and the Criminal Justice Council. Each looked for ways to revise the state’s penal code to slow the flow of inmates into Kentucky’s overcrowded prisons and underfunded, and sometimes unsafe county jails.

The CJC meets next Monday to formalize its recommendations to Gov. Steve Beshear – and there are numerous recommendations. But action on them depends largely on the General Assembly, and the Judiciary’s subcommittee effectively said Tuesday it needs more time.

Sen. Gerald Neal, D-Louisville, co-chaired the legislative subcommittee and he delivered its report to the Judiciary Committee Tuesday.

“The subcommittee believes that this matter needs further continued study during and after the 2009 regular session of the General Assembly and possibly for a longer period,” Neal said. He pointed out the existing penal code was first proposed in 1972 and lawmakers took two years before enacting it in 1974.

Judiciary Chairman Sen. Robert Stivers, R-Manchester, said when the subcommittee was first formed the process would take longer than some anticipated. Rep. Robin Webb, D-Grayson, who sits on the Judiciary Committee and was active in past sessions trying to deal with growing corrections budgets, agreed.

She told the CJC’s subcommittee on sentencing that while the problem is urgent it will take time to produce solutions.

That subcommittee made a key recommendation which some believe holds out the most promise – amend Kentucky’s Persistent Felony Offender (PFO) laws to reflect more closely its original intent when passed as part of the 1974 penal code. Other subcommittees of the council had declined to make that recommendation. Then, offenders were required to have spent time in prison or jail and committed two prior offenses before being charged as PFOs. But over the years, lawmakers added PFO penalties and made it easier to charge offenders with previous convictions, even if they’d never spent time in jail.

Janet Graham of Attorney General Jack Conway’s staff, commonwealth's attorney for Boone and Campbell counties Linda Tally Smith, and Kenton County Deputy Judge-Executive Scott Kimmich voted against the recommendation.

Prosecutors almost uniformly oppose weakening the PFO laws, although the original PFO author, University of Kentucky law professor Robert Lawson attributes subsequent changes made by lawmakers as a primary cause of the exploding incarceration rate in Kentucky.

Smith and Warren County Commonwealth's Attorney Chris Cohron have said they’re open to discussing some minor changes. Tuesday, Smith proposed eliminating the option of charging an offender with felony enhancements and also charge him as a PFO. Prosecutors would have to choose between the two options. The measure passed.

Several lawmakers, including Webb and House Judiciary Chairwoman Kathy Stein, D-Lexington, have said prospects for passing such reforms aren’t good. In addition ot opposition by prosecutors, lawmakers are sensitive about being perceived as “soft on crime.”

Kimmich said he thought it unwise for the committee to “start picking out which offense will be enhanced and which would not be. We should allow the judiciary and prosecutors to make those decisions.” But Kimmich conceded county governments are also looking at the impact of proposed penal code revisions on housing state felons in county jails. The state pays the county for those inmates which help subsidize the costs of the jails.

The Kentucky County Judge-Executives Association and 110 county governments recently filed suit seeking more money from the state for housing state inmates.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. He can be reached by e-mail at rellis@cnhi.com.